SIJPRItMH COUR I 01’ 11114 S IAI B 01 NI W YORK(‘OIJNIYO1 YA1I’S

‘ii thc Matter of the \ppihat.un of

SIFRRA C IA 11 COMMI1 11 F TO PR! SLRVE 1 HI’ FINGFRI AKI S by and in the name of PFTER GAMBA, its President,indCOALJfION IOPROILCI NlWYORKbyandintheiame cf KA I HRYN BAR 11 LOLOMI W its Treasurei

Petitioners,NOTICE OF MOTIONor a Judgment Pursuant to Article 78 ot the C ivilTO DISMISS‘ractice Law und Rules,

againstIndex No. 2016-0165

NEW YORK SIA1 I DEPARTMFN1 OF FNVIRONM1’N IAI(‘ONSURVA liON, BASil SI CR305, COMMISSIONI R,1RL’LNIDOF GENERAl ION. LL C (iRb bNIDGF PIPL LINF.I..( (IREI NIIXII PIPL’1 INI’ PROPhR ill S CORPORA liON

md I (K KWOOI) 1111 1 S. I IL

Respondents.

PLEASF AKk NOTI( E that on January 24,2017 Respondents New York State

)epartment of Pnvironmental C onservation (DI’C) and its Commissioner, Basil Seggos will

move this court at 415 Liberty Street, Penn Yan, NY 14527, on the affirmation of Nicholas C.

uttino and an accompanying memorandum of law, for an Ordei:

I) l)isinissing this petition under C P1 R 3211 for lack ot standing and mootness,

(2) Any furthei relief that die court deems just.

In the event the court denies the State s motion to dismiss in whole or in part, the State

rcquesu thirty days after service of notice of entry of the order denying this motion to answer thc

petitiot

l)ated January S 1016Albany New York

rRlc’ I SC’IINFIDItRMANAttorney General of the

State ofNew YorkAttorney (q Re’pondent’

ByNI(’HOLAS C. BUTfIN()Assistant Attorney GeneralFnvironmental Protection BureauNew York State Department of Law1 he CapitolAlbany, New York 12224(518) 776-2406Nicholas.Buttino a ag.ny.gov

2

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF YATES

In the Matter of the Application of

SIERRA CLUB, COMMITTEE TO PRESERVE THE FINGER

LAKES by and in the name of PETER GAMBA, its President,.

and COALITION TO PROTECT NEW YORK by and in the

name ofKATHRYN BARTHOLOMEW, its Treasurer,

Petitioners,

For a Judgment Pursuant to Article 78 ofthe CivilPractice Law and Rules, Index No. 2016-0 165

-against-

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL

CONSERVATION, BASIL SEGGOS, COMMISSIONER,

GREENIDGE GENERATION, LLC, GREENIDGE PIPELINE,

LLC, GREENIDGE PIPELINE PROPERTIES CORPORATION

and LOCKWOOD HILLS, LLC,

Respondents.

MEMORANDUM OF LAW IN SUPPORT OF STATE RESPONDENTS’ MOTION TO

DISMISS

ERIC T. SCHNEIDERMANAttorney General of the State ofNew YorkAttorneyfor RespondentsEnvironmental Protection BureauNew York State Department of LawThe CapitolAlbany, New York 12224-034 1(5 1 8) 776-2405

NICHOLAS C. BUTTINOSUSAN L. TAYLORAssistant Attorneys General

OfCounsel Dated: January 5, 2017

Reproduced on Recycled Paper

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

PRELIM1NARY STATEMENT 1

STATEMENT OF FACTS 1

Procedural History 1

Statement of Facts 2

Description of Petitioners 3

ARGUMENT 4

POINTI 4

PETITIONERS LACK STANDING 4

Standard of Review for a Motion to Dismiss 4

Petitioners Have Failed to Identify an Individual Member of the Sierra Club, the

Coalition, or the Committee Who Has Standing 4

Petitioners Also Lack Standing Because They Are Not Harmed by the Greenidge

Project 6

New York Courts Do Not Recognize Informational Standing and Petitioners Fail to

Show an Informational Injury 8

PO1NTII 10

PETITIONERS’ CLAIMS ARE MOOT 10

CONCLUSION 12

TABLE OF AUTHORITIES

State Cases

ABNAMRO Bank N V v YBIA Inc., 17 NY3d 208 [2011] 4

Aldrich v Pattison, 107 AD2d 258 [2d Dept 1985] 8

LaDelfa v Vii. oflit. Morris, 213 AD2d 1024, 1024 [4th Dept 1995] 5

Matter ofAssn. for a Better Long Is., Inc. v NYState Dept. ofEnvtl. Conservation,

23NY3d1 [2014] 6

Matter ofCitineighbors Coalition ofHistoric Carnegie Hill v New York City Landmarks

Preserv. Commn., 2 NY3d 729 [2004] 10

Matter ofCitizens Organized to Protect Envt. (ex rel. Brinkman) v Planning Bd. of Town

oflrondequoit, 50 AD3d 1460 [4th Dept 2008] 6

Matter ofClean Water Advocates ofN Y, Inc. v N Y. State Dept. ofEnvtl. Conservation,

103 AD3d 1006 [3d Dept 2013] 5

Matter ofDreikausen v Zoning Bd. ofAppeals ofCiiy ofLong Beach,

98 NY2d 172 [2002] 10, 12

Matter ofFinger Lakes Zero Waste Coalition, Inc. v Martens,95 AD3d 1420 [3d Dept 2012] 5

Matter ofKindred v Monroe County, 1 1 9 AD3d 1 347 [4th Dept 2014] 4, 5, 8

Matter ofNiagara Preserv. Coalition, Inc. v New York Power Auth.,

121 AD3d 1507 [4th Dept 2014] 6

Matter ofSave the Pine Bush, Inc. v Common Council ofCity ofAthany,

13 NY3d 297 [2009] 7, 8

Matter ofTuxedo Land Trust Inc. v Town of Tuxedo34 Misc 3d 1235[A] [Sup Ct, Orange County 2012] 7

Mobil Oil Corp. v Syracuse Indus. Dev. Agency, 76 NY2d 428 [1 990J 7

NYState Ass ‘n ofNurse Anesthetists v Novello, 2 NY3d 207 [2004] 6

Rudder v Fataki, 93 NY2d 273 [1999] 4, 5

Socy. ofFlastics Indus., Inc. v County ofSuffolk, 77 NY2d 761 [1991J 5, 6, 8

11

Federal Cases

Ati. States Legal Found. v Babbitt, 140 F $upp 2d 1 85 [NDNY 2001] 2, 9

Found on Economic Trends v Lyng, 943 F2d 79 [DC Cir 1991] 8, 9

Scientists’Inst. For Pub. Info. vAtomic Energy Comm’n, 481 F.2d 1079 [DC Cir 1973] 8

Statutes

CPLR217(1) 11

CPLR3211 4

CPLR78O4(f) 12

ECL8-0107 7

ECL8-0109[2] 7

State Regulations

6 NYCRR § 617.3[bJ 7

6NYCRRpt.201-6 2

Federal Regulations

4OCFR’7O.4 2

111

PRELIMINARY STATEMENT

Petitioners are three environmental organizations seeking to invalidate air emissions

permits issued by the Department of Environmental Conservation (DEC) to respondent

Greenidge Generation LLC (Greenidge). Greenidge seeks to reactivate an existing electric

generating facility in Torrey, New York, using natural gas rather than the coal that once powered

the facility. Petitioners challenge DEC’s environmental review under the State Environmental

Quality Review Act (SEQRA). Specifically, they claim that DEC failed to take the “hard look”

required by that law, and they ask the court to invalidate DEC’s two air permits on that ground.

The State moves to dismiss the petition for lack of standing and mootness. Petitioners

neither plead nor prove standing by one or more individual members, and thus lack

organizational standing. Petitioners also lack standing for an alleged “informational injury,”

which is not recognized in New York and, in any event, they have not satisfied the federal

standard. Moreover, even if petitioners had standing, their challenge is moot because Greenidge

spent millions of dollars building a natural gas pipeline to reach its permitted facility, yet

petitioners failed to seek to enjoin the company’s activity until November 3, 2016. Case law

holds that failure to seek an injunction and allowing a permitted project to conduct significant

construction moots a proceeding. The court should dismiss the amended petition in its entirety

because petitioners lack standing and failed to seek timely injunctive relief.

STATEMENT OF FACTS

Procedural History

On October 28, 201 6, by order to show cause, petitioners set a return date for the petition

ofNovember 17, 201 6. (Buttino Affirmation ¶ 5.) Before responses were due by agreement,

petitioners filed and served an amended petition, which added the Sierra Club as an additional

petitioner. (Id. ¶ 7.) On December 1 3 , 201 6, the parties stipulated to a January 24, 201 7 return

date, with service of respondents’ papers by January 6, 2017. (Id ¶ 8.) That same day,

petitioners filed a notice ofamended petition. (Id. ¶ 9.) Ten days later, on December 23, 2016,

petitioners served their notice ofmotion ofa preliminary injunction, with its accompanying

attorney affirmation and memorandum of law. (frJ ¶ 1 1.)

Statement offacts

The petition seeks to invalidate air permits issued by DEC to Greenidge pursuant to 40

CFR § 70.4 and 6 NYCRR Pt. 201 6.2 (Amended Petition ¶ 1 .) Greenidge requires these Clean

Air Act Title IV and Title V permits to resume generating electricity at the Greenidge Generating

Station (the plant), which it seeks to convert from coal to natural gas. (Id ¶ 12-13.) To fuel the

repowered plant, Greenidge requires a 4.6-mile gas pipeline. (Id. ¶ 51.)

On August 12, 2015, DEC published notice ofGreenidge’s permit application in the

Environmental Notice Bulletin. (Id ¶ 12.) The notice advised that Greenidge had applied for

permits pursuant to Titles IV and V of the Clean Air Act, as well as a State Pollutant Discharge

Elimination System (SPDES) permit and a permit allowing the plant to withdraw cooling water

from Seneca Lake. (Id ¶J 12, 1 7.) DEC declared itself lead agency, determined that the

applications constituted a Type I project for SEQRA purposes, announced that a coordinated

environmental review had occurred, and concluded that the project would have no significant

effects on the environment. (Id ¶ 1 6.) Accordingly, DEC issued a negative declaration. (Id)

1 The notice of motion for the preliminary injunction does not purport to apply to DEC.

Accordingly, the State does not address the merits of the motion. To the extent that the

preliminary injunction seeks to enjoin DEC from issuing a permit, petitioners’ challenge is

unripe and they cannot stop DEC from performing a statutorily mandated duty.

2 For the purposes of this motion to dismiss only, the State accepts the allegations in the amended

petition as true.

2

Subsequently, the U.S. Environmental Protection Agency (EPA) sent DEC a letter raising

concerns about the draft Clean Air Act permits. (Id ¶ 29.) DEC revised the permits to address

EPA’s issues. On September 8, 2016, after having published notice ofthe revised permits in the

Environmental Notice Bulletin and an amended negative declaration, DEC issued Greenidge two

air permits for the project. (Id ¶J 1 , 3 1.)

The petition asserts a single cause of action: DEC violated SEQRA when it issued the

amended negative declaration. (Id ¶ 88.) Petitioners argue that the Greenidge project will have a

significant environmental impact, and claim that DEC failed to take the hard look required by

SEQRA. (Id. ¶J 47-78, 93.)

Description ofPetitioners

Petitioners are three nonprofit organizations. The Sierra Club is based in California.

(Amended Petition ¶ 4.) It has members in New York, including members who live near the

Greenidge Station and Seneca Lake. (hi ) The Sierra Club states that it will be injured by the

proj ect because of the pipeline construction, the waste generation, and the role that gas-powered

plants play in climate change. (Id ) It further alleges that it suffers an “informational injury”

because DEC should have required a full environmental impact statement for the project. (Id)

The Sierra Club names none of its members.

The Committee to Preserve the Finger Lakes (Committee) is a voluntary association

formed to preserve the beauty ofthe Finger Lakes. (Id ¶ 5.) Its members live in the Seneca Lake

watershed in the Village of Dresden and the Towns of Torrey and Milo. The petition identifies

one member of the Committee, President Peter Gamba. (Id) Similarly, the Coalition to Protect

New York (Coalition) is an unincorporated association comprised of local environmental groups,

which seeks to protect natural resources and opposes natural gas drilling and infrastructure. (Id

¶ 6.) The amended petition identifies one Coalition member, Treasurer Kathryn Bartholomew.

3

(Id ) Like Sierra Club, the Committee and the Coalition each claim to suffer an informational

injury based on the lack of a full environmental impact statement for the project. (Id )

ARGUMENT

POINT I

PETITIONERS LACK STANDING

Standard ofReviewfor a Motion to Dismiss

“on a motion to dismiss pursuant to CPLR 32 1 1 , the pleading is to be afforded a liberal

construction[.]” (ABNAMRO Bank, N V v MBIA Inc. , 1 7 NY3d 208, 227 [20 1 1] [internal

quotation marks omitted].) “Courts must accept the facts as alleged in the complaint as true,

accord plaintiffs the benefit of every possible favorable inference, and determine only whether

the facts as alleged fit within any cognizable legal theory[.]” (Id. [internal quotation marks

omitted].)

Petitioners Have failed to Identify an Individual Member ofthe Sierra Club, the Coalition, or

the Committee Who Has Standing

To have standing, “an organizational plaintiff must demonstrate a harmful effect on at

least one of its members; it must show that the interests it asserts are germane to its purposes so

as to satisfy the court that it is an appropriate representative of those interests; and it must

establish that the case would not require the participation of individual members[.]” (Rudder v

Fataki, 93 NY2d 273, 278 [1 999] [internal quotation marks and citations omitted].)

“[P]arties seeking to establish standing must establish that the injury ofwhich they

complain falls within the zone of interests, or concerns, sought to be promoted or protected, and

that they would suffer direct harm, injury that is in some way different from that of the public at

large[.]” (Matter ofKindred v Monroe County, 1 19 AD3d 1347, 1348 [4th Dept 2014] [internal

quotation marks and citations omitted].) For an individual to have standing to sue on behalf of

4

an organization for an environmental harm, the petition must show that “[o]ne ofthe petitioners

owned property near the project site and [musti allege[] that his property would suffer

noneconomic harm from the environmental impacts ofthe project.” (LaD4fa v Vii. ofMt.

Morris, 21 3 AD2d 1024, 1024 [4th Dept 1995].) No petitioner has established that it has

organizational standing.

Showing standing depends on the standing of the named members. (Socy. ofPlastics

Indus., Inc. v County ofSuffolk, 77 NY2d 761 , 776 [1 991] [noting “Plaintiffs’ standing

therefore depends wholly on [a named member]—the only named party with a presence in” the

area].) The Amended Petition identifies no members of the Sierra Club and only one member

each of the Coalition and the Committee. (Amended Petition ¶ 4-6). The Sierra Club’ s failure

to identify a single local member dooms any claim to standing.

Neither the Coalition nor the Committee have pleaded facts tending to show a member’s

standing. (See, e.g. , Matter ofClean Water Advocates ofN Y, Inc. v N Y. State Dept. ofEnvtl.

Conservation, 1 03 AD3d 1 006, 1 007-08 [3d Dept 20 1 3]) [dismissing petition for lack of

standing where petitioner submitted an affidavit of only one member]; Matter ofFinger Lakes

Zero Waste Coalition, Inc. v Martens, 95 AD3d 1 420, 1420-21 [3d Dept 2012] [dismissing

petition where affidavit failed to carry burden of showing individual had standing and therefore

organization lacked standing] .) Absent allegations that specific individual members of each

organization have standing, and proofto support those allegations, petitioners have failed to

carry their burden to establish their entitlement to sue. (See Kindred, 1 1 9 AD3d at 1347.)

The amended petition also fails to show that the proceeding does not require the

participation ofpetitioner’s individual members. (See Rudder, 93 NY2d at 278.) Because the

petition contains little description of the members or any putative harm, some of the members

may suffer disproportionate harm and may be necessary parties. (See Matter ofCitizens

5

Organized to Protect Envt. (ex rel. &inkman) v Planning Bd ofTown oflrondequolt, 50 AD3d

1460, 1460-61 [4th Dept 20081 [holding that an organization lacked standing because “the

petition [was] primarily concerned with the environmental effects on property owned by” two

members].) Therefore, the court should also dismiss for lack of standing because petitioners fail

to meet their burden on this ground. (See Matter ofNiagara Preserv. Coalition, Inc. v New York

Power Auth., 121 AD3d 1507, 15 10-1 1 [4th Dept 2014], lv denied, 124 AD3d 1419 [4th Dept

2015], and lv denied, 25 NY3d 902 [201 5] [holding petitioners failed to meet their burden to

show standing to challenge a SEQRA determination].)

Petitioners Also Lack Standing Because They Are Not Harmed ly the Greenidge Project

Even if petitioners had individual members who had standing, the organizations have

failed to plead or prove specific allegations of environmental harm attributable to the permits.

“Standing is a threshold determination, resting in part on policy considerations, that a person

should be allowed access to the courts to adjudicate the merits of a particular dispute that

satisfies the otherjusticiability criteria[.]” (Matter ofAssn. for a Better Long Is., Inc. v NY State

Dept. ofEnvtl. Conservation, 23 NY3d 1, 6 [2014] [internal quotation marks omitted].)

“Petitioner has the burden of establishing both an injury-in-fact and that the asserted injury is

within the zone of interests sought to be protected by the statute alleged to have been violated[.]”

(Id at 6.) The injury-in-fact requirement means a petitioner must show “that [petitioner] will

actually be harmed by the challenged administrative action.” (NYState Ass ‘ii ofNurse

Anesthetists v Novello, 2 NY3d 207, 2 1 1 [2004] .) “The zone of interests test, tying the in-fact

injury asserted to the governmental act challenged, circumscribes the universe ofpersons who

may challenge administrative action.” (Socy. ofFlastics, 77 NY2d at 773.)

“To qualify for standing to raise a $EQRA challenge, a party must demonstrate that it

will suffer an injury that is environmental and not solely economic in nature[.]” (Mobil Oil Corp.

6

V Syracuse Indus. Dev. Agency, 76 NY2d 422, 43 3 [1 990].) “[I]n cases involving environmental

harm, the standing of an organization could be established by proof that agency action will

directly harm association members in their use and enj oyment of the affected natural

resources[.]” (Matter ofSave the Fine Bush, Inc. v Common Council ofClly ofAthany, 13 NY3d

297, 304 [2009] [internal quotation marks omitted].) For example, members using land “for

recreation and to study and [to] enjoy the unique habitat” gives the organization standing. (Id at

305.)

In this case, petitioners challenge DEC’s negative declaration under SEQRA.3 Petitioners

make no attempt to show that the Greenidge project will harm them. Petitioners do not even

attempt to plead any harm, other than a general desire to protect the environment (Amended

Petition ¶ 4) and the water of the region (id ¶ 5) and to oppose the unspecified harms of “gas

drilling, gas drilling wastes and fossil fuel infrastructure.” (Id ¶ 6.) “[P]erfunctory allegations of

harm[,J” however, are insufficient to satisfy the standing requirements. (Save the Fine Bush, 13

NY3d at 306; see also Matter ofTuxedo Land Trust Inc. v Town ofTuxedo, 34 Misc 3d l235[A],

* 1 [Sup Ct, Orange County 2012] [denying standing for perfunctory allegations of harm]).

Nor do petitioners offer any allegations or affidavits that show that their members will be

harmed in a way that differs from the general public. (See Amended Petition ¶J 4-6; Buttino

Affirmation ¶ 6, 1 0.) They fail even to allege that their members use and enjoy Seneca Lake.

(See Amended Petition ¶J 4-6; Buttino Affirmation ¶J 6, 10.) Without pleading a particular

harm, petitioners fail to show that they have standing to challenge DEC’s negative declaration.

3 All state agencies must implement SEQRA (ECL 8-01 07) by preparing an environmental

impact statement for all actions that “may have a significant effect on the environment.” (ECL 8-

01 09[2].) If the agency determines that there is not a significant effect on the environment, it

issues a negative declaration. (See 6 NYCRR § 61 7.3[b].)

7

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impact statement because “[i]t would potentially eliminate any standing requirement in NEPA

cases[.]” (See Lyng, 943 F2d at 24.) “If such injury alone were sufficient, a prospective plaintiff

could bestow standing upon itself in every case merely by requesting the agency to prepare the

detailed statement NEPA contemplates[.]” (Id at 85) The D.C. Circuit found it did not have to

decide the informational injury standing question because the petitioners failed to meet the

requirements of the Administrative Procedures Act. (1d)

The Northern District ofNew York rejected a similar standing claim based on a

purported informational injury. (See Ad. States Legal Found , 140 F Supp 2d at 194.) It held

“that the notion of informational harm, without more, does not confer standing in a NEPA case

as it is inconsistent with the requirement of establishing concrete and particularized harm.” (Id)

“To hold otherwise would allow organizational plaintiffs . . . to undermine the established

principals of standing in NEPA cases by simply requesting that an agency prepare an”

environmental impact statement. (Id)

Petitioners neither show standing based on an informational injury nor plead a specific

injury from the absence of an environmental impact statement. Their desire for the information

does not set them apart from the public at large. Without more, they cannot be harmed by the

desire for the information in an environmental impact statement. (See Lyng, 943 F2d at 84-85;

Ad. States Legal , 140 F Supp 2d at 1 94.) If the court recognized informational standing

on these facts, it would eliminate the standing requirements for SEQRA cases. Therefore, the

purported informational injury, even ifrecognized by the court, does not confer petitioners

standing.

9

POINT II

PETITIONERS’ CLAIMS ARE MOOT

Even if petitioners had standing to challenge DEC ‘ s negative declaration,4 their claims

are moot because they allowed Greenidge to invest significant time and resources to effectuate

their air permits and eventual operations without seeking an injunction. It was unfair to allow

Greenidge to proceed with the project at significant expense, only to have petitioners bring this

late challenge in November 2016.

“[T]he doctrine of mootness is invoked where a change in circumstances prevents a court

from rendering a decision that would effectively determine an actual controversy[.]” (Matter of

Dreikausen V Zoning Bd ofAppeals ofClly ofLong Beach, 98 NY2d 165, 172 [2002J.) “Where

the change in circumstances involves a construction project, [the court] must consider how far

the work has progressed towards completion.” (Matter ofCitineighbors Coalition ofHistoric

Carnegie Hill v New York City Landmarks Preserv. Commn., 2 NY3d 727, 729 [2004].) “Chief

among [the considerations] . . . has been a challenger’s failure to seek preliminary injunctive

relief or otherwise preserve the status quo to prevent construction from commencing or

continuing during the pendency ofthe litigation[.]” (Dreikausen, 98 NY2d at 173.)

Petitioners have been aware ofthe proposed Greenidge project since at least August 12,

2015, when DEC published notice in the Environmental Notice Bulletin that Greenidge had

applied for air permits. (Amended Petition ¶ 24.) The Committee commented on the proposed

4 To the extent that petitioners seek to challenge the air permits for reasons other than a claimed

$EQRA violation, they have failed to state a claim. The amended petition appears to raise

questions regarding the validity ofthe air permits on the merits. (See Amended Petition ¶ 1.)

However, their sole cause of action attacks the air permits only for a claimed SEQRA deficiency.

(Id ¶J87-1O1.)

10

Greenidge project less than one month later. (Id ¶ 26.) DEC issued the amended negative

declaration on June 28, 20 1 6 (Id ¶ 33) and the air permits on September 8, 20 1 6 (id ¶ 1).

Petitioners knew about Greenidge’s plans, and had publicly opposed them, but did not

file their petition until October 28, 201 6 (id at 1 , 25). Petitioners did not serve the State until

November 2, 201 6, did not serve Greenidge until November 3, 201 6, and did not serve a notice

ofamended petition until December 13, 2016. (Buttino Affirmation ¶ 4, 9; Affidavit of Dale

Irwin ¶ 8.) Despite knowing about Greenidge’s permit applications for over a year, petitioners

made no attempt to seek an injunction until serving this petition on November 3 , 2016.

(Amended Petition at 1 , 25.)

Between June 28, 201 6 and November 3, 2016, Greenidge planned and implemented

phases of the proj ect. Between September 1 6, 201 6 and November 3 , 201 6, Greenidge spent

$2,187,492 to further its project. (Irwin Affidavit ¶ 29.) As ofNovember 3, 2016, Greenidge had:

(1) completed 50% of the clearing activities; (2) constructed 20% of the pipeline (cost of

$705,56 1 ); (3) completed 1 5% of the regulation station work (cost of $79,3 04); (4) completed

30% ofthe meter station work (cost of $846,222); and (5) completed 50% ofthe interconnection

work (cost of $55 1 ,646). (Id ¶ 28.) Total expenditures by November 3, 20 1 6 were $3,020,866.

(Id ¶ 3 1.)

Petitioners were aware of Greenidge’s permit applications and DEC’s negative

declaration since August 20 1 5, but failed to challenge the action until October 201 6. Petitioners

could have sought a temporary restraining order, and it would have been reasonable to do so

afier DEC issued the air permits on September 8, 201 6. But they did not, and their failure to take

reasonable steps to seek an injunction and preserve the status quo renders moot their claim

11

against DEC. (See Dreikausen, 92 NY2d at 1 73 .) The court should dismiss this proceeding

because petitioners failed to take those basic and equitable steps.

CONCLUSION

For the reasons stated above, the State requests that the court dismiss the amended

petition. Ifthe court denies the motion to dismiss, then the State requests thirty days from service

of the notice of entry to answer the amended petition. (See CPLR 7804(f) [allowing the State

time to answer if a motion to dismiss is denied].)

Dated: January 5, 2017Albany, New York ERIC T. SCHNEIDERMAN

Attorney General ofthe State ofNew YorkAttorneyfor Respondents

ByNicholas C. ButtinoAssistant Attorney GeneralEnvironmental Protection BureauNew York State Department of LawThe CapitolAlbany, New York 12224-034 1(518) 776-2406

Nicholas.Buttinoag.ny.gov

12

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF YATES

In the Matter ofthe Application of

SIERRA CLUB, COMMITTEE TO PRESERVE THE FINGERLAKES by and in the name of PETER GAMBA, its President,and COALITION TO PROTECT NEW YORK by and in thename ofKATHRYN BARTHOLOMEW, its Treasurer,

. . AFFIRMATION OFPetitioners,

NICHOLAS CFor a Judgment Pursuant to Article 78 ofthe Civil

BUTTINO IN•Practice Law and Rules, SUPPORT OF

. MOTION TO DISMISS-against-

NEW YORK STATE DEPARTMENT OF ENVIRONMENTALIndex No. 2016-0 165

CONSERVATION, BASIL SEGGO$, COMMISSIONER,

GREENIDGE GENERATION, LLC, GREENIDGE PIPELINE,

LLC, GREENIDGE PIPELINE PROPERTIES CORPORATION

and LOCKWOOD HILLS, LLC,

Respondents.

NICHOLAS C. BUTTINO, an attorney admitted to practice in the State ofNew York,

affirms, under penalties of perjury under CPLR 2 1 06, as follows:

1 . I am an Assistant Attorney General employed by the New York State Department

of Law. In that capacity, I represent the New York State Department of Environmental

Conservation (DEC) and its Commissioner, Basil Seggos, (collectively, the Department) in this

proceeding.

2. I make this affirmation based on personal knowledge, my review of documents

maintained in the ordinary course of business by DEC, and my representation of the Department.

3 . I submit this affirmation in support of the Department’ s motion to dismiss.

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4. on November 2, 20 1 6, petitioners served the Department with their petition, an

attorney affirmation, and an order to show cause dated October 28, 20 1 6. Petitioners also served

the Office of the Attorney General on November 2, 2016.

5. The order to show cause set the return date as November 17, 2016. The parties

later negotiated for a return date of December 22, 20 1 6, with respondents’ papers due on

December 8, 2016.

6. Petitioners did not serve any affidavits or affirmations from individuals, including

members of the two organizations. The accompanying attorney affirmation was submitted only

in support of the order to show cause.

7. On December 6, 201 6, petitioners served the Office of the Attorney General with

an amended petition. The amended petition adds the Sierra Club as a petitioner.

8 . On December 1 3 , 201 6, the parties entered into a scheduling stipulation. The

stipulation provides a return date of January 24, 20 1 7 and that respondents’ papers are due

January 6, 2017.

9. On December 1 3 , 201 6, petitioners served the Office of the Attorney General with

a notice of amended petition and another copy of the amended petition. The notice of amended

petition sets a return date of January 24, 2017.

1 0. Petitioners did not include any affidavits or affirmations with their amended

petition.

1 1 . On December 23 , 201 6, petitioners served a notice of motion for a preliminary

injunction against respondent Greenidge Generation LLC (Greenidge), an accompanying

attorney affirmation, and a memorandum of law. The attorney affirmation does not establish or

address petitioners’ standing.

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1 2. Absent specific allegations of a harmful effect on at least one of its members, a

statement of germane organizational interests, and proof that the petition does not require the

participation of individual members, an organization lacks standing. Petitioners have not carried

this burden. Petitioners also fail to establish both an injury in fact and an injury within their zone

of interests. Petitioners cannot gain standing through an informational injury and fail to show an

informational injury.

1 3 . Moreover, on information and belief, as described in the Affidavit of Dale Irwin,

for Greenidge Generation LLC, petitioners’ claims are moot because petitioners’ delay in

commencing this litigation allowed respondent Greenidge to spend millions of dollars on

activities necessary to the project, which is nearing completion. (See Irwin Affidavit.)

14. To the extent petitioners attempt to seek an injunction against DEC regarding the

remaining $PDES and water withdrawal permit applications under agency review, petitioners are

not entitled to that relief. Petitioners may not prevent DEC from performing a statutorily

mandated duty. In addition, petitioners’ challenges are not ripe, there is no irreparable injury, and

the balance ofthe equities do not favor petitioners.

Dated: January 5, 2017Albany, New York j-

Nicholas C. Buttino

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